The health protocols imposed as a result of the Covid-19 epidemic require us to rethink the organization within companies.
Teleworking, which some time ago was an option, is now indispensable.
The French Unions reaffirmed that when negotiation a new collective agreement last November 26th.
What is its legal framework?
Who is eligible?
Is it necessary to provide employees with equipment? Etc.
On 1st September 2020, the French Ministry of Labour specified that in light of the current situation with the Covid-19 circulation which does not stop, the implementation of teleworking can be considered as a workstation arrangement, which is made necessary in order to ensure the business continuity of companies. Even though his temporary framework is highly recommended, it does not lead to any formal requirements.
However, a number of employers and employees wish teleworking will develop or even be in wide use within companies. Several rules must be observed with respect to teleworking.
Please find hereafter questions and answers in order to help employers grasp this concept and its implementation within their company, in compliance with legal provisions.
1- How should teleworking be implemented ?
- Article L1222-11 of the French Labour Code states that the risk of an epidemic can justify the use of teleworking without the employees’ consent and without particular formal requirements. In the framework of the current situation, it will constitute a temporary teleworking arrangement. However, other than in that specific instance, things are different.
- Generally, teleworking can be implemented:
- by a collective agreement,
- or failing that by a charter drawn up by the employer after consulting the social and economic committee
Therefore, the employer must initiate negotiations on teleworking at company-level, establishment-level or group-level.
- It is only in the absence of agreement or charter that it is highly recommended to formalize, by all means, the use of teleworking agreed by the employer and the employee: email, letter or amendment to the employment agreement (Article L1222-9 of the French Labour Code)
In order to limit the risks of litigation, we recommend that the employer formalize such agreement by an amendment to the employment agreement which will set the terms of implementation of teleworking.
2- Which content for the agreement, the charter or the amendment to the employment agreement ?
- The terms for switching to teleworking and for resuming performing the employment agreement without teleworking,
- The conditions of acceptance by the employee of the teleworking implementation terms,
- The conditions of control of working time or of regulation of workload,
- The setting of the hours during which the employer may usually contact the teleworker;
- The conditions of access for disabled employees to a teleworking organisation.
3- Who are the eligible employees ?
- No employee is officially excluded from eligibility to teleworking except in case of obvious reasons related in particular to their profile, such as lack of years of service or lack of independence or in case of tasks that must take place outside (requirement to go to sites, to visit clients etc.).
- In practice, it is the collective agreement or the charter which sets the eligibility criteria as the case may be, in accordance with the quite precise definition of teleworking (Article L1222-9 of the French Labour Code); a concept which should not be confused with home-based work which is governed by Articles L7411-1 & seq of the French Labour Code.
4- Can an employee refuse teleworking ?
The employer cannot force an employee to telework and the employee’s refusal cannot constitute a ground for termination of his/her employment agreement.
The only exception to the voluntary principle arises as a result of exceptional circumstances, in particular in case of a threat of an epidemic (for instance the Covid-19 health crisis with which we have been faced) or in case of force majeure.
5- Is teleworking a right for the employee?
The French Ministry of Labour recommends the use of teleworking given the actual situation of circulation of Covid-19 and its use should be favoured for a number of employees.
- Except where the authorities expressly recommend the use of teleworking as a result of the health crisis background or a vulnerable situation which is certified by a physician, no provision requires that you accept a request for teleworking.
However, if the request is made by an employee whose employment position is eligible to teleworking in accordance with the collective agreement or the charter in force within the company: refusal must be reasoned.
In any event, in light of the principle of equal treatment, the criteria for selection retained must be based on objective criteria.
6- Can the occupational physician impose teleworking as a result of the employee’s health condition?
The occupational physician can suggest, in writing and after discussing with the employee and the employer, individual measures of arrangement, adaptation or transformation of the workstation of the relevant employee, in light taking into account in particular the employee’s age or physical and mental health condition.
The employer must take the abovementioned elements into account in order to comply with its obligations, in particular in terms of safety, failing which it shall explain in writing to the employee and the occupational physician the objective grounds for its refusal.
7- Can an employee telework from anywhere he/she wants?
Teleworking can take place:
- From the employee’s home,
- From the employee’s second home,
- From a third place such as coworking space,
- From abroad provided that the employee informs you and can guarantee normal conditions of performance for the sake of his duty of loyalty,
in compliance with the provisions provided for by
- The collective agreement,
- The charter.
As part of its general safety obligation, the employer must first ensure that the workplace is compliant, and in particular the electrical installations. In the event the teleworker works from home, the employer must obtain his/her prior consent or as the case may be request that he/she provides an affidavit certifying that the electrical and technical installations are compliant, after informing him/her or risk exposure in the event the equipment is not compliant.
8- What are the teleworkers’ rights?
Teleworkers have the same rights as employees who perform their work in the premises of the company.
The collective agreement or the charter implementing teleworking must provide for the conditions of (i) control of working time or (ii) of regulation of workload.
The employer must organise an annual meeting regarding in particular the employee’s conditions of activity and workload.
The hours during which the employee can be contacted mut be provided for by the agreement, the charter, the employment agreement or the amendment to the employment agreement, as the case may be.
9- What are the employers’ obligations?
The equipment required may belong to the employer or the employee.
The only legal obligation of the employer is the following: it must inform the employee of
- Any restrictions on:
- The use of IT equipment or tools
- The use of electronic message services
- Any sanctions in the event of failure to comply with the restrictions
In all cases, the employer must provide appropriate technical support service.
10- What are the teleworkers’ obligations?
With respect to the equipment:
Teleworkers have the obligation to inform the company forthwith of any breakdown or poor operation of the equipment
With respect to the insurance against teleworking-related risks:
In principle, home insurance covers teleworking. The employer must request a teleworking coverage certificate. The employer should bear any extra-cost generated by teleworking.
The firm ASSER AVOCATS is available to assist you with the sustainable implementation of teleworking within your company.